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SCOW: Appeals from expired ch. 51 commitment orders are not moot

Sauk County v. S.A.M., 2022 WI 46, reversing an unpublished court of appeals opinion, 2019AP1033; case activity

Unlike other states, Wisconsin appellate courts have for decades dismissed most appeals from expired ch. 51 orders as moot. As a result, there was been little appellate review of circuit court decisions declaring people mentally ill, committing them to government custody, and medicating them against their will. Not any more. In a 4-3 decision, SCOW holds that appeals from expired recommitment orders are not moot due to their collateral consequences. While S.A.M. won the war on mootness, he lost his due process and sufficiency of evidence claims. His recommitment was affirmed.

Justice Karofsky authored the majority opinion, joined by Justices A.W. Bradley, Dallett, and Hagedorn.  She noted that from 2018 through 2020 the court of appeals decided no appeals from initial commitment orders and only 40% of recommitment orders before they expired. Opinion, ¶6. In most cases, the court of appeals dismissed appeals from expired commitment orders as moot unless the appellant proved an exception to the mootness doctrine. That is no longer necessary.

Two years ago SCOW held that an appeal from an expired initial commitment order is not moot because the order has a significant collateral consequence–it subjects the committed person to a continuing firearm ban. Marathon County v. D.K., 2020 WI 8, ¶125, 390 Wis. 2d 50, 937 N.W.2d 901. So the court of appeals has been deciding those appeals on the merits. Now in S.A.M.’s case, the majority applies the same rationale to expired recommitment orders.

¶23 . . . Prevailing on appeal would vacate the recommitment order and practically alter a committed person’s “record and reputation” for dangerousness, a factor a reviewing court must consider when weighing a petition to cancel a firearms ban. § 51.20(13)(cv)1m.b. Additionally, if a committed person succeeds in vacating an expired recommitment order, the fact that the recommitment order no longer exists might influence the reviewing court’s weighing of whether restoring gun rights would be consistent with the “public interest.” Id. Even if marginal, these practical effects on a committed person’s ability to restore a constitutional right remain “no minor consequence.” D.K., 390 Wis. 2d 50, ¶25. Thus, the “causal relationship” between these practical effects and our vacatur of an expired recommitment order renders an appeal of such orders not moot.

The majority also holds that commitments have collateral financial consequences.  Section 46.10(2) provides that a committed person “shall be liable for the “cost of care, maintenance, services, and supplies” related to each commitment period.

¶24  . . . If the underlying commitment order is vacated, however, the liability tied to that particular commitment period no longer exists. See Jankowski v. Milwaukee County, 104 Wis. 2d 431, 438-40, 312 N.W.2d 45 (1981); Ethelyn I.C. v. Waukesha County, 221 Wis. 2d 109, 120-21, 584 N.W.2d 211 (Ct. App. 1998). For that reason, a direct causal relationship exists between vacating an expired recommitment order and removing the liability it creates, sufficient to render recommitment appeals not moot.

The county argued that a court may not presume collateral financial consequences. The committed person must prove actual liability or collection attempts to establish a live controversy. The majority rejected that argument for two reasons. (1) The county’s collection efforts are irrelevant. The person “remains liable solely by virtue of § 46.10(2)’s mandatory language.” (2) To overcome mootness, a person need only prove the “potential” for collateral collection actions. Opinion, ¶25 (citing State v. McDonald, 144 Wis. 2d 531, 537, 424 N.W.2d 411 (1988) and D.K., 390 Wis. 2d 50, ¶24).

On the merits, S.A.M. argued that the County’s failure to tell him upfront which standard of dangerousness he would satisfy if treatment were withdrawn violated his right to due process. His argument failed because it rested solely on Langlade County v. D.J.W., 2020 WI 41, ¶24, 391 Wis. 2d 231, 942 N.W.2d 277. The majority held: “D.J.W. addressed a circuit court’s legal responsibility to facilitate meaningful appellate review, not a county’s pretrial notice responsibilities. ” Also, D.J.W. was decided after S.A.M.’s recommitment hearing.  Opinion, ¶29.

Note that the majority did not foreclose the argument that a person undergoing recommitment has a due process right to notice of the dangerousness standard that the county is proceeding under.  It held:

Because S.A.M. relies only on the inapt D.J.W. to support his due-process claim, we cannot say the County’s notice violated his procedural due-process rights. Opinion, ¶29. (Emphasis supplied)

That’s okay. Plenty of other cases support a person’s due process right to notice of the legal standard that the government is proceeding under. See Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972)(commitment proceedings); In re Gault, 387 U.S. 1, 33 (1967)(juvenile delinquency proceedings); Cole v. Arkansas, 333 U.S. 196, 201 (1948)(criminal proceedings); In the Matter of Ruffalo, 390 U.S. 544 (1968)(lawyer disbarment proceedings); State v. VanBronkhorst, 2001 WI App 190, 247 Wis. 2d 247, 633 N.W.2d 236 (revocation proceedings).

S.A.M. also argued that the county’s evidence was insufficient to support his recommitment. Since his case pre-dated D.J.W., the county’s and the circuit court’s failure to specify a standard of dangerousness didn’t matter. Here the full court agreed, based on the evidence, that the county had proceeded under the third standard of dangerousness by way of (1)(am). Opinion, ¶32.

A doctor testified that (1) S.A.M. had told his case worker that he didn’t need medication, and (2) if S.A.M. were not on commitment order he would stop medication and the behavior that led to his initial commitment (i.e. homelessness, malnourishment, substance abuse, threats of self-harm, a desire to die) would return.  The caseworker testified that when S.A.M. is off medication he threatens self-harm and refuses services that would allow him to live independently. Opinion, ¶¶19-34

Even though S.A.M. testified that he had learned his lesson and would stay on medication in the future, the circuit court found him not credible on this point. SCOW deferred to this finding and held the county’s evidence sufficient. Opinion, ¶33.

S.A.M. also argued that the county’s evidence on dangerousness did not strictly adhere to statutory standards as required by Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. But SCOW clarified that this was not necessary in D.K., ¶53 and again here. Opinion, ¶35.

Chief Justice Ziegler filed a dissent/concurrence joined by Justices R.G. Bradley and Roggensack. They vehemently opposed the majority’s mootness holding. Ziegler writes–and On Point agrees–that the majority opinion means “the mootness doctrine never applies in chapter 51 proceedings.”  Dissent, ¶55.

She then argues that the sky is falling. The majority “inexplicably chose this case to overturn the mootness doctrine.” Dissent, ¶39. The majority “needlessly opens the floodgates to appellate review of all commitments and recommitments.” Dissent, ¶41.

The majority did not overturn the mootness doctrine. It simply brought Wisconsin in line with the vast majority of courts around the country. Most states recognize the mootness doctrine. All but two or three exempt commitment appeals from the doctrine. They do it because, like an appeal from a criminal conviction, an appeal from a commitment order has collateral consequences for the individual.

At worst the majority opinion opens “trickle gates.” The chief judge of the court of appeals filed a letter in this case indicating that over the three years from 2018 to 2020 it saw 68 appeals from recommitment orders. It was able to decide 27 of them before they became moot, leaving 41 vulnerable to dismissal for mootness. That means the court of appeals must now decide a trickle of additional recommitment appeals–maybe 13 or 14 per year.  Its annual caseload varies by hundreds of cases per year. Will it notice a difference?

One last point. Like the majority, the dissent rejected S.A.M.’s due process argument. But the dissent did not leave the door open. It cites a string of 6th and 7th Circuit cases involving parking tickets and toll violations where the courts held that the drivers were not denied due process even though they received incomplete or inaccurate information about the laws they violated and their court hearings. Dissent, ¶53. If the dissenters think that parking ticket cases should govern commitment proceedings, don’t expect them to find Lessard, Cole, Gault, Ruffalo et al. persuasive. Defense lawyers who raise this issue in future cases will have to win the other four justices.



{ 2 comments… add one }
  • Elizabeth Rich June 27, 2022, 10:51 am

    SCOW will revisit the due process issue in an upcoming case, Jackson County v. C.A.D. Trial counsel, please file motions in limine on this issue, asking the court to require the county to identify which standard of dangerousness it intends to proceed under at trial. Otherwise, the court of appeals will likely find that the issue has been forfeited on appeal.

  • Elizabeth Rich June 27, 2022, 2:19 pm

    To correct my earlier comment: SCOW may hear the CAD case, not “will” hear it. The Court accepted the petition for review, then held it in abeyance pending the decision in SAM. The Court has now instructed the parties to provide an analysis of the impact of Sauk County v. SAM on the issues raised in the petition for review (which were identical to the issues raised in SAM).

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